Civil Procedure Code, 1908 - S. 97 - Where any party aggrieved by a preliminary decree passed, does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner’s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE
JURISDICTION

[R. BANUMATHI] AND [L. NAGESWARA RAO] JJ.

May 15, 2018

CIVIL APPEAL NO.21834 OF 2017

SELVI …Appellant

Versus

GOPALAKRISHNAN
NAIR (D) THR. LRS. AND ORS. ...Respondents

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 13.04.2006 passed by
the High Court of Madras at Madurai Bench in Second Appeal No.255 of 2005 in
and by which the High Court set aside the final decree passed by the trial
court and affirmed by the First Appellate Court by holding that the
appellant/plaintiff cannot lay a claim in respect of Survey No.988 which the
first respondent/second defendant claims entitled to.

2. Brief facts as seen from the Plaint averments are as follows:-

The
suit properties that is plaint A Schedule property and Plaint B Schedule
property belonged to Kali Pillai, Krishna Pillai and others of Varukkapilavila
Veedu, which was outstanding on a mortgage. On 27.12.1088 M.E.(11.08.1913) Kali
Pillai, Krishna Pillai, Champakakutty Pillai alias Bhagvathi Pillai and Kalyani
Pillai and Lakshmi Pillai mortgaged the said properties to Kutti Bhagvathi for
Rs.785/- (Rs.109.04). The mortgage was an usufructuary with Kuzhikkanam for a
period of twelve years. While Kutti Bhagvathi was enjoying it, she assigned her
mortgage right to Eravi Pillai Parvathi Pillai from whom Parameswaran Pillai of
Kavavilai got an assignment under deed No.1231 of 1107 and came into
possession. Parameswaran Pillai sub-mortgaged portion of Plaint B Schedule
property to Kesava Pillai Narayana Pillai which right has become vested in the
second Defendant. The fourth Defendant has also right in the suit mortgage. The third Defendant has also right in the suit mortgage. The
third Defendant has leasehold right over some portion of B Schedule property
under Parameswaran Pillai. The first Defendant is in possession of A Schedule
property as the heir of the deceased assignee mortgagor Parameswaran Pillai.
The mortgagors 1 and 2 died and their right devolved on the legal heirs of
mortgagors - Kalyani Pillai and her mother Lakshmi Pillai. The first Plaintiff
- Kalyani Pillai inherited the equity of redemption of the plaint property on
the death of her mother Lakshmi Pillai. The first Plaintiff is thus the
mortgagor by derivative title who is entitled to redeem the mortgage from
Defendant Nos.1 to 4. In so far as her mortgage rights, the first
plaintiff-Kalyani Pillai executed an agreement of sale on 27.12.1968 in favour
of the second Plaintiff - Vasudevan Pillai with respect to the mortgage property
and as such he has joined as the second Plaintiff. Suit Properties within the
stated boundaries are said to be situated in respect of A Schedule property in
Survey numbers 990 - extent of 85 cents and Survey No.983/12A - 1 acre and 35
cents; Survey No.983/13A - 5 acres 96 cents and Survey No.983/14A – 0.64 acres
in respect of B schedule property.

3. The respondent-second defendant who is the main contesting defendant
resisted the suit inter-alia contending
that he is in possession of Survey No.983/14A for which the
appellants/plaintiffs have no right of possession. The second
defendant-Gopalakrishnan Nair inter-alia further
pleaded that the property in old Survey No.988 belongs to him and the third
defendant is residing in a building situated in Survey No.988 on rental basis.

4. The parties went for trial. Upon consideration of evidence, the trial
court passed the preliminary decree for partition on 07.08.1976 holding that
the plaintiffs-Kalyani Pillai and Vasudevan Pillai are entitled to redeem and
recover possession of 7.40 acres from defendant Nos.1 to 4 by depositing of
mortgage money of Rs.109.81Paise. The trial court passed the preliminary decree
for partition to the said extent of 7.40 acres in the suit property to which the
plaintiffs are entitled for partition and separate possession.

5. First plaintiff - Kalyani Pillai executed an agreement for sale
on 27.12.1968 in favour of the second plaintiff-Vasudevan Pillai. The second
plaintiff-Vasudevan Pillai assigned the above said agreement in favour of one
Rajayyan on 05.08.1978 and the said Rajayyan assigned that agreement in favour
of third plaintiff-Selvi, wife of Devaraj on 10.03.1983. In the final decree
proceedings, third plaintiff- Selvi got herself impleaded in the suit by filing
a separate petition. All the three plaintiffs filed final decree application in
I.A. No.120 of 1985 in OS No.1516 of 1969. The trial court by its judgment
dated 19.09.2001 passed the final decree for partition holding that Survey No.988
which the second defendant claims cannot be exempted from the suit property. In
the final decree, the trial court held that the appellant/plaintiff is entitled
to the portion as “ABCDEFXVUTSRQKLMNOP” marked in Exhibit C.2, entitled to the possession
and that the plaintiffs are entitled to redeem the suit property. The Court
further directed that the legal heirs of third defendant-Krishna Pillai are
entitled to get a sum of Rs.2,64,607.50 as development charges of the suit
property.

6. Being aggrieved by the final decree, the second defendant Gopalakrishnan
Nair preferred an appeal in AS No.6 of 2002 on the file of Sub-court,
Kuzhithurai. The First Appellate Court dismissed the appeal vide its judgment dated 20.08.2004 holding that no
appeal had been preferred from the preliminary decree dated 07.08.1976 by the second
defendant and that he cannot challenge the correctness of the preliminary
decree in the final decree proceedings. The First Appellate Court confirmed the
final decree passed by the trial court and dismissed the appeal observing that
Gopalakrishnan Nair cannot have any valid objection for the final decree in
favour of the plaintiffs.

7. Being dissatisfied with the concurrent findings, the first respondent
preferred appeal in SA No.255 of 2005 before Madras High Court at Madurai
Bench. The High Court proceeded to hold that the first respondent/second
defendant in his written statement raised a plea of ownership in respect of
Survey No.988 and that by its order dated 27.04.1998, the trial court also
directed exclusion of the property in Survey No.988. After referring to the
order of the trial court dated 27.04.1998 and the Commissioner's Report, the
High Court held that the suit property in the preliminary decree does not cover
Survey No.988 and was removed from the ambit of the suit property by the trial
court and on those findings, the High Court allowed the second appeal. The High
Court held that the final decree will stand as it is, excluding Survey No.988.
Being aggrieved, the appellant/plaintiff is before this Court.

8. We have heard the learned counsel for the parties at length and perused
the impugned judgment and carefully considered the evidence and materials
placed on record.

9. Right from the beginning, while filing the written statement and
also the objections filed to the Commissioner’s Report, the second defendant-Gopalakrishnan
Nair has been contending that old Survey No.988 (R.S. No.123/9) belongs to him.
In his objections filed in I.A. No.120 of 1985, the second defendant-Gopalakrishnan Nair raised
the following objections:-

“……R.S.
No.123/9 which is old survey No.988 belongs to the second defendant. The title
of the second defendant to R.S. No.123/9 was declared and the defendants 9 to 11 who are the LRs
of the third defendant are restrained by injunction from disturbing the quiet
and peaceful possession of the land and trees excluding the building and
courtyard…….”

10. Mr.
Raveendran Nair, Advocate-Commissioner was appointed to measure the suit
properties according to the boundaries contained in the documents filed in the
suit namely Exts. A.1, A.2, B.1, B.2 and to locate the properties contained in
the Survey numbers 990, 983-A and 988. In the said order dated 27.04.1998, the
trial court directed exclusion of Survey No.988 as seen from the following:-

“…..Further, he is directed that after measuring
and locating the suit properties viz., in Survey No.990 and 983-A and the
second defendant’s property which is situated in Survey No.988, the Commissioner
may allot the plaintiff’s share of 7 Acres 40 cents both in Survey No.990 and
983 or in any of the above two survey numbers….”

11. The Commissioner filed its Preliminary Report on 17.02.1999,
for which the second defendant-Gopalakrishnan Nair filed detailed objections
stating that the Commissioner, while locating Survey No.988, did not follow the
boundary descriptions contained in the documents. Relevant portion of the
objections filed by the second defendant-Gopalakrishnan Nair inter alia reads as under:-

“…….

4. The Commissioner did not locate the Plaint Schedule survey numbers
i.e., Survey Nos.990 and 983 and the other Survey Number 988 as directed by
this Hon’ble Court.

5. The Commissioner failed to understand that a partition is impossible
in this suit without locating the plaint schedule survey numbers 990 and 983.

6. It is seen from the report of the Commissioner that he is more
particular and interested in locating Survey No.988 alone just to confuse
matters. The various documents filed by this Defendant relating to his title to
Survey No.988 and ignored by the Commissioner. While locating Survey No.988,
the Commissioner did not follow the descriptions contained in the ancient
documents filed by this defendant before this Hon’ble Court. But he simply followed
documents for bits of land brought into existence after the suit and registered
in Kerala at the instance of the Plaintiff.

8. …..This Thottampara Nilam lies west of the road and comprised in
Survey No.1025. The portion lies west of the road also forms part of Survey
No.988. The portions shown as Thottampara Nilam and Muriyaravilakam are also
portions of Survey No.988. The Commissioner did not locate the southern limit of
Survey No.988…… …..”

12.
Based on the objections filed by the second defendant, Mr. Raveendran Nair,
Advocate-Commissioner revisited the property and filed his Report noticing
Survey No.988 falls within the description of the suit properties. The relevant
portion of the Report of the Commissioner dated 26.04.1999 reads as under:-

“….While the Hon’ble Court appointing me as
Commissioner, it is specifically ordered to exclude old Survey No.988. Since it
belongs to second defendant, when this plot is excluded from partition the share
of the plaintiff will come in file No.123/5, 6, 535/1, 2, 535/4 and the Plot B,
B1, B2 and B3.

The old survey number of the properties are 983/12, 13, 14 and
988 of Mancode Village. Out of the above survey numbers, the plaintiff is
entitled on the basis of boundaries the plot shown A,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,A,
is the plot having an area of 7 Acres 40 Cents.

……”

13.
Appellant-Selvi filed detailed objections to the Commissioner’s Report stating
that Survey No.988 cannot be excluded from the properties to be partitioned.
Second defendant-Gopalakrishnan Nair also filed detailed objections to the
Commissioner’s Report on 04.11.1999, as under:- “…..

4. The Commissioner has wrongly shown ‘B’ Schedule Property
inclusive of the whole by Survey Nos.988 without identifying the suit
properties i.e. Survey Nos.983A and 990. Old Survey No.988 correlates to R.
Survey No.123/9 having an extent of 3 Acres 39 Cents in the exclusive property
of this defendant which is not available to a partition. In this aspect, the Commissioner
has not even taken note of the various documents filed by this defendant.

5. The Commissioner exceeded his authority in allotting the share
of the plaintiff inclusive of the whole Survey No.988 while this Hon’ble Court
specifically directed him to allot the share of the plaintiff in Survey
Nos.983A and 990 or in any of the both.

6. Paragraphs 5 and 6 of the report of the Commissioner are mutually
conflicting. Paragraph 6 of the report is totally in conflict with the plan
showing the allotment. Plots B1 and B2 shown by the Commissioner in his plan
explicitly come within Survey No.988.

So, the allotment of the share of the plaintiff inclusive of
Survey No.988 is totally against the spirit of the order of this Hon’ble Court dated
27.04.1999. Such an allotment totally deprives the exclusive right of this
defendant over Survey No.988.

….”

14.
Considering the objections repeatedly filed by the second defendant reiterating
that Survey No.988 falls within the description of the suit properties and that
should be excluded from the properties to be partitioned, the trial court ought
to have held an enquiry and directed the parties to adduce evidence as to the
right claimed by the second defendant in old Survey No.988 (R.S. No.123/9) and
what was the basis on which the possession of the second defendant was upheld in
the proceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992.

15. Both
the trial court and the First Appellate Court appear to have rejected the
objections raised by the second defendant mainly on the following grounds:-

i.
No appeal was preferred by the second defendant against the preliminary decree
and therefore, second defendant cannot challenge the correctness of the preliminary
decree in the final decree proceedings;

ii. Second defendant has not raised the
plea regarding his claim of ownership in Survey No.988; and

iii. Application
for passing final decree is pending for more than sixteen years

16. As per
Section 97 CPC, where any party aggrieved by a preliminary decree passed after
the commencement of this Code does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be preferred
from the final decree. Of course, the second defendant has not filed the appeal
against the preliminary decree challenging its correctness. But as pointed out
by the learned counsel for the second defendant, in the description of the suit
properties, Survey No.988 has not been shown. As pointed out by the High Court, in para No. (13) of the
written statement, second defendant has clearly averred that he is the owner of
the adjoining property in Survey No.988 in which the plaintiffs and the other
defendants have no right and that the third defendant is residing in a building
belonging to the second defendant in the said Survey No.988 on rental basis. In
spite of the objections raised by the second defendant as to the boundaries and
description of the suit properties and also claiming right in Survey No.988
stated to be falling within those boundaries, the plaintiffs have not amended
the description of the suit properties by bringing in Survey No.988 in the suit
property. It is in this context, in their written statement, the defendants
have stated that “the defendants have no objections to surrender the mortgage
right in respect of Plaint B Schedule items…..”.

17. Be it noted that two Commissioners namely Mr. K. Ponniah and Mr.
Ambrose earlier appointed have inspected the suit properties and filed their
Reports stating that the suit properties are not identifiable. Only when Mr. Raveendran Nair, Advocate-Commissioner inspected the
suit property, he has noticed that Survey No.988 is falling within the description
of the boundaries stated in the Plaint. Since the description of the suit
property did not contain Survey No.988, the fact that the second defendant did
not prefer appeal against the preliminary decree, cannot be put against the
second defendant. Though the High Court referred to the averments in the
written statement as to the claim of second defendant in Survey No.988, the
High Court did not go into the question as to the entitlement of second
defendant and the confusion regarding the boundaries of the properties.

18. In view of the stand taken by the second defendant that he is entitled
to the adjoining property in Survey No.988 by virtue of the sale deed of the
year 1951 and the consistent objections raised by him to the Commissioner’s
Report, in our view, in the final decree proceedings, the trial court ought to
have directed the parties to adduce evidence to enable the court to ascertain
the truth as to the correct description of the suit property and also the right
claimed by the second defendant in Survey No.988. We are conscious that the parties
are fighting litigation for more than five decades; but in order to meet the
ends of justice, in our view, the impugned judgment of the High Court and the
courts below are liable to be set aside and the matter be remitted to the trial
court for deciding the matter afresh.

19. Before we close the matter, we feel it necessary to set at rest
two issues. As pointed out earlier, Kalyani executed an agreement for sale on
27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff
assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and
the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on
10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree
application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court
and when the second appeal was pending before the High Court, second plaintiff Vasudevan
Pillai filed an affidavit on 07.01.2013 before the trial court – District
Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and
denying the right of third plaintiff-Selvi to pursue the final decree
application. The said Vasudevan Pillai alleged that he has never filed final
decree application and that his signature was forged and he has not assigned
his right either in favour of Rajayyan or in favour of third plaintiff-Selvi.
Though the parties have advanced lengthy arguments on the said averments in the
affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit
of Vasudevan Pillai is clearly an afterthought. In the final decree application
I.A. No.120 of 1985, all the three plaintiffs have signed. In the
final decree stage, the third plaintiff-Selvi got herself impleaded based on
the assignment of right in her favour by Rajayyan who in turn got the assignment
from the second plaintiff-Vasudevan Pillai. The third plaintiff-Selvi was
pursuing the final decree application. Though the final decree application was
pending before the trial court for more than sixteen years and thereafter in
the First Appellate Court, Vasudevan Pillai has not raised any objection nor made
any grievance against the third plaintiff-Selvi. Only when the second appeal
was pending before the High Court, the second plaintiff-Vasudevan Pillai has
chosen to file an affidavit before the court denying assignment of the right
and raising plea of forgery. In our view, the stand of Vasudevan Pillai is
clearly an afterthought and no weight could be attached to the averments in the
affidavit. We make it clear that after the matter is remitted to the trial
court based on his affidavit, Vasudevan Pillai is not entitled to put forth any
claim. We also make it clear that the locus of
third plaintiff-Selvi to pursue the matter also shall not be called for
question nor be challenged.

20. For the foregoing reasons, the impugned judgment of the High Court
and the courts below are set aside and the appeal is allowed. The matter is remitted to the trial court for consideration of
the application for final decree I.A. No.120 of 1985 in OS No. 1516 of 1969 afresh
with the following directions:-

(i) The plaintiffs and the second defendant are
at liberty to adduce oral and documentary evidence to substantiate their
objections filed to the Commissioner’s Report;

(ii) The trial court to decide
upon the correct survey numbers falling within the description of the suit properties
and whether the said suit property within the stated boundaries tally with the
properties mortgaged;

(iii) Tallying of boundaries of the properties with reference
to documents, if necessary, by reference to revenue records.

(iv) Entitlement of the second defendant- Gopalakrishnan Nair as
to Survey No.988 with reference to his documents and also the proceedings
before the Executive Magistrate and further revision thereon; and

Since parties
are litigating the matter for more than five decades, we direct the trial court
to expedite the hearing in the final decree proceedings and dispose the same in
accordance with law. No cost.